Disappointing: Teller Sues Other Magician For Doing The Same Trick

from the ownership-society dept

I've been a big fan of Penn & Teller since I was a kid, so I'm pretty disappointed to learn that Teller (the silent one, whose name, it turns out, is Raymond Teller) is suing another magician for copyright infringement for (a) doing a similar trick that may have been based on a Teller trick and (b) offering to sell "the secret" to that trick for around $3,000. There was a YouTube video of this other magician, Gerard Dogge, who goes by the stage name Gerard Bakardy, showing the trick, which Teller had removed with a DMCA takedown notice. Dogge (who is Dutch, but apparently performs in the Canary Islands at a hotel) and Teller then had a phone conversation, where Teller offered money to Dogge to stop performing the trick and to promise not to reveal the secret -- but they disagreed over price.

This is disappointing in a number of different ways. Years ago, we wrote about an academic paper that looked at how the magic community policed itself without having to resort to the blunt instrument of intellectual property lawsuits. As Tim Lee noted at the time:

Instead, the magic community uses social norms to reward those who discover new magic tricks and punishes those who disclose them to non-magicians. Because magicians rely so much on their professional network of other magicians to learn about new tricks, new equipment, and new performance opportunities, maintaining a good reputation within the magic community is essential to the career of a successful magician. A magician who uses another magician's trick without giving the originator proper credit, or who reveals secrets to non-magicians, is shunned by other magicians. That kind of ostracism can be a much better (not to mention cheaper) way of disciplining wayward members than getting the lawyers involved.

Unfortunately, it looks like Teller has decided to go much further than that. While it is true that he registered a copyright on the trick, illustrated with the following amusing illustration, it's pretty ridiculous for a magician to claim "ownership" of a trick:

I recognize that magicians fear losing "the secret" to their tricks, but that's pretty silly. Magic is entertainment, and people like going to see it not because they're "fooled" but because of the showmanship of the entertainers. And, Penn & Teller's monstrous success has much more to do with the fact that their acts are incredibly entertaining -- rather than the skill of their tricks. Even if someone knew the secrets to all of their tricks, it wouldn't make the show any less enjoyable.

Furthermore, it's not even clear that there's actually infringement here. While certain specifics about the performance may be copyrightable, the basics of just doing a trick shouldn't be subject to copyright. It's much more narrow. If anything this seems like yet another attempt to abuse copyright law to stifle some form of "competition," rather than for any legitimate copyright-related purpose. It's just disappointing that someone like Teller would do such a thing.

I don't know what Teller thinks his endgame will be, but if this other magician feels significantly spiteful he'll just reveal and spread the secret for free in a burnt earth form of retribution. Also, unless I'm wrong in my memory, didn't Penn & Teller build their career on exposing "the secret" to how some tricks are done?

The issue isn't that someone else is doing penn and teller's signature trick, it's that that person is offering to SELL the secret to the trick, and when offered money to not do that, drastically increased the price. Come on mike, You need to report on the whole story.

I love how Mike leave out relevant, material facts when making his repetitive "ownership culture!" argument. Mike claims: "Furthermore, it's not even clear that there's actually infringement here. While certain specifics about the performance may be copyrightable, the basics of just doing a trick shouldn't be subject to copyright. It's much more narrow." But, of course, there's no actual analysis of what parts of the performance are copyrighted and whether those parts are being copied.

Mike doesn't want this to be infringement, so he just pretends like it isn't. As always, working backwards. Of course Mike leaves out the fact that Teller has a registered copyright on the work. Mike pretends like it's about "the secret," when really it's about the copyrighted work.

And, of course, Mike completely leaves out the Lanham Act claim. I assume it's only because he couldn't figure out how to spin it. Just more typical, mindless IP bashing. Mike just goes into autopilot mode with this stuff. These pieces are so predictable and idiotic--Mike's bread and butter! Good job, Mike!!

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I love how Mike leave out relevant, material facts when making his repetitive "ownership culture!" argument. Mike claims: "Furthermore, it's not even clear that there's actually infringement here. While certain specifics about the performance may be copyrightable, the basics of just doing a trick shouldn't be subject to copyright. It's much more narrow." But, of course, there's no actual analysis of what parts of the performance are copyrighted and whether those parts are being copied.

Mike doesn't want this to be infringement, so he just pretends like it isn't. As always, working backwards. Of course Mike leaves out the fact that Teller has a registered copyright on the work. Mike pretends like it's about "the secret," when really it's about the copyrighted work.

And, of course, Mike completely leaves out the Lanham Act claim. I assume it's only because he couldn't figure out how to spin it. Just more typical, mindless IP bashing. Mike just goes into autopilot mode with this stuff. These pieces are so predictable and idiotic--Mike's bread and butter! Good job, Mike!!

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Um reading comprehension fail:

I've been a big fan of Penn & Teller since I was a kid, so I'm pretty disappointed to learn that Teller (the silent one, whose name, it turns out, is Raymond Teller) is suing another magician for copyright infringement for (a) doing a similar trick that may have been based on a Teller trick and (b) offering to sell "the secret" to that trick for around $3,000.

In this case, I'm on Teller's side, but only because the magician is charging for the secret. That's like taking the KFC recipe book and selling it online and not expecting the owner to be pissed about it. Or like other comedians getting pissed that Carlos Mencelia's been performing their jokes at other gigs for years.

Copyright has its place, and for all it's wrongs, I don't see this as one of them.

Well, I think this is sad, too. I think it's a bit petty and the wrong thing to do, but consider this:

Teller is getting on in years and people have been known to become 'different' when aging. Also, this trick is actually one of his earlier ones and, forgive me that I forgot where I read it, but I have read an 'ask me anything'-style chat transcript, where he mentioned this trick as one of his favourite memories of his career, or s.th. to that effect. So maybe he just feels too strongly for this particular trick to be entirely rational in his actions.

Also, Mike, his name IS actually not Raymond Teller. His name WAS Raymond Teller, until he had it legally changed to Teller. He has only one name, it is not a stage name or alias, his name is just plain 'Teller'. What his close personal friends call him, I don't know.

The best magic trip yet to be explained.

Yeah, this is all fine and dandy. But the finest magic trick has yet to be explained. It's a magic trick so incredible and so mysterious, that nobody in the world can even begin to describe how it's done. The trick?

How to pull a politician's head out of their ass!

That's it! Nobody has ever explained it because it never happens. Maybe once every ten thousand years or so, but it's the best magic trick ever. And it's one trick I'm sure politicians will copyright and bury so deep nobody will ever see it happen again.

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Oh, an I forgot, for the people who say 'hey, they got famous showing how the tricks/other people's tricks work!':

Most of the tricks they explain are made up by them/their cohorts specifically for the purpose of being explained. The rest (that is mostly just filler for Penn to talk) is stuff that's basic enough to be found off the rack in magic shops or can be read in magic books, but might still be new enough for the audience.

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I have no idea, really, but by logic (I'm just guessing, don't sue me): he doesn't touch the rose, so the rose is prepared, has to be: there's some mechanism in the rose that makes branches drop. How could you do this? Well, one way I could think of is to rig tiny ropes through the (hollowed out) stems, cut the stems, but not the rope. Now pull the ropes tight so it looks whole. If you let the rope slack, the stem will fall. These ropes can go through the vase, though the stand, to some remote controlled release mechanism. Perhaps there are other ways to makes stems break with some remote controlled device. Then, when he pushes the paper with the knife, someone working with him just presses the right button.

I'm probably way off, and it must be even simpler :) I'm always surprised how simple many tricks are. But people see what they want to see or what they think they see.

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Recipes are not copyrite-able. They may be trade secrets, but that is a different story. One cannot sue for copyright over a trade secret, but might have a case for whatever they charge for corporate espionage.

I'm on Teller's side on this one. Mike wrote: "Magic is entertainment, and people like going to see it not because they're "fooled" but because of the showmanship of the entertainers." -- under that logic, then copyright shouldn't apply to music or movies either, right? Music and movies are also entertainment. If I were to go out and perform the music copyrighted by a musician, I'd be in the wrong. I think the same principle would apply here...

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Everybody who saw a show of theirs or caught some select episodes of 'Bullshit' or the episode of 'P&T Tell a Lie' where it's about lighting a match while standing on a plane's wing has heard Teller talk. He talks quite a bit. Just not when he can be seen to be talking.

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Most of the tricks they explain are made up by them/their cohorts specifically for the purpose of being explained. The rest (that is mostly just filler for Penn to talk) is stuff that's basic enough to be found off the rack in magic shops or can be read in magic books, but might still be new enough for the audience.

Yeah from what I understand, most magicians were cool with them "exposing" stuff because they don't really. Like if you watch their cup and ball routine with clear plastic cups, they are so freaking fast that you don't learn anything you didn't already know (that magicians are damn good at concealing things and slipping them in and out of their hands)

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You could've maintained your composure, spoken matter-of-factly about the issues Masnick raised, and argued for the relevance of issues Masnick overlooked. I mean, if you have a credible, contrary point of view, you should be confident enough in your position to express it in a way that simply and succinctly counters Masnick's spin, and casts seeds of doubt among his readers. Instead, you resort to couching your unsupported argument in ad hominem, sarcasm, and arm-flailing, and the tone of your post indicates you're rather worked up about the fact that Masnick has a following, of sorts. At best, your antics are amusing, but they still undermine your cause.

I'd be curious to see how similar the trick actually is. The trick is almost more like a piece of performance art that happens to have a magical component. Being a huge fan of P&T, I'd like to think that if the guy had figured out how Teller does it and used that to build a new routine around the same illusion, it wouldn't be so much of an issue. But without seeing the imitation, it's hard to say...

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Meh. Mike sees someone enforcing their property rights, and he has nothing but bad things to say about. Funny how Mike pretends to care about authors and artists, yet he hates the fact that they have rights that they may want to enforce. Mike won't be happy until they have no property rights. And nothing makes Mike happier than when somebody violates someone else's copyright rights. He thrives on it.

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You rightly point out that Teller has a registered copyright on the work. I guess you are saying that this means the issue of whether this stage act is copyrightable is moot?

I think it's correct that courts generally accept such registrations as prima facie proof of copyright ownership. But ownership of what, exactly? Masnick is correct when he says it's unclear how much of the act depicted in Teller's drawing is actually protected. Certainly the drawing itself is protected. But is the depicted act and its (presumably) unfixed-in-tangible-form, secret implementation covered? This isn't a case like with a musical composition, where the law explicitly covers the abstract composition, not just its tangible, printed or recorded form.

You also mention that the lawsuit isn't just about copyright; it also contains an Unfair Competition claim. That is, if I understand correctly, Teller says he was (or will be?) harmed by the Dogge's business practices, which are based on the copying of Teller's act. These kinds of claims get mixed results in court, don't they? I can see how it might be worth a shot, but I also see how it's standard operating procedure nowadays to attach a Lanham Act claim to every copyright claim.

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Whether and to what extent the trick is copyrightable subject matter is not at all clear. Had Mike endeavored to analyze that issue, I'd have been impressed. But as it is, all we got some vague reference that it might not be thick protection and another battle cry of "ownership culture sucks!" Just a little more effort than "look how dumb this copyright case is" is all I'm asking. Otherwise, it's just the same, baseless, and repetitive IP-bashing rant that we always get. Less articles, more depth for a change.

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Mike sees someone enforcing their property rights, and he has nothing but bad things to say about. Funny how Mike pretends to care about authors and artists, yet he hates the fact that they have rights that they may want to enforce.

Yet, last week, when we posted an article *by an actual artist* who was in the process of *protecting her rights* I get called out by all your friends for hating musicians.

I give up trying to be logical with you. You guys are so biased you've decided my positions despite clear statements that prove you wrong. You're blind to reality. You insist I'm a "pirate." I am not. I do not infringe. I do not celebrate infringement. You claim I don't care about artists. Yet I work with artists, and celebrate artists making money.

You have no arguments. You just lie and attack, lie and attack. I can't figure out why, other than jealousy, or some weird attachment to disproven theories of copyright maximalism. It's sad.

Re: Revealing secrets

I'm talking back in the 90's I remember being introduced to P&T as them showing how the tricks work. And this wasn't minor magic like cups and balls, but big illusions of Copperfield level like a semi-truck running over Teller. Though there is the idea floating around that they only exposed tricks they themselves created in the first place, which if true makes them savvy self-promoters and not such potential hypocrites.

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Penn once said, I forget where, that the only reason for a magician to keep a secret is because it's ugly. Some tricks look magnificent, but the way they're done is ugly and dumb, and a significant proportion of the audience would have a gut anger reaction towards the magician who used such an ugly, stupid, dumb technique to obtain that effect.

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I'm inclined to agree that the distinction between idea and expression carries over more or less directly to magic routines. A sufficiently different act based on the same tricks wouldn't have the same moral problems that a direct copy would.

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"Meh. Mike sees someone enforcing their property rights, and he has nothing but bad things to say about."

"A magician who uses another magician's trick without giving the originator proper credit, or who reveals secrets to non-magicians, is shunned by other magicians. That kind of ostracism can be a much better (not to mention cheaper) way of disciplining wayward members than getting the lawyers involved."

You're wrong and apparently only see what you want to: by quoting Tim Lee it appears to me that Mike supports the reasonable enforcement of property rights in this very situation. He illustrates that the magic community already has best practices for dealing with the likes of Dogge, yet Teller decides to go beyond these community standards. If these community standards work then Teller is deserving of said criticism. If they don't then debate the flaws in their operation and how they can be made better. Not every potential legal issue needs litigated, unless you're a lawyer who wants a guaranteed gravy-train. If this is your POV then obviously Mike's position will appear to you as if "he hates the fact that they have rights that they may want to" LEGALLY "enforce" (there fixed it for you) for any competition to enforcing property rights outside of using the law and lawyers will be a threat and/or illegitimate.

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"Social shunning", the solution regularly offered here, does not always work, though it oftentimes has a quite salutory effect. What about when it does not? Should someone simply sit idly by and do nothing? To read the comments here it would seem so because resort to our body of laws is repugnant to their sensibilities.

Magic

First, I am a magician. I am a member of the Academy of Magical Arts in Hollywood. The club house for the Academy is the Magic Castle - see www.magiccastle.com

I can tell you that the work that goes into an original idea, in the magic world, is huge. Hours and hours goes into the effect and the perfection for performance.

When that work is ripped off by someone who did not do the work, it hurts. It may be ego, it may be rage, but it disappoints that some people do not give the appropriate courtesy of letting the originator make a living with his hard work.

I personally would not sue to stop the performance, but I would be personally outraged that the conventions of the profession where not upheld. The Masked Magician on Fox is a great example of a spoiler.

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I had a nice conversation with him about 20 years ago. I was an amateur magician at the time. I had just seen that trick. I don't want to know how it's done, it doesn't matter. As magicians, we're always trying to figure out "how did he do that?" Once we figure it out, well, it's ours as well. I can do the cups and balls, the french drop, palm cards. Some taught, some I figured out on my own. Monkey see, monkey do. I understand wanting to keep something so good under one's hat(pun intended), but once it's in the open, you just keep trying to make your performance of it better than anyone else. Guess maybe the emotional response from someone trying to blackmail him has gotten the better of him.

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The original KFC innovation was not the spices but the pressure cooker used to cook fried chicken fast. Clever technique, but again, cooking techniques are neither copyrightable, nor (please never let it happen) patentable.

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Yes. Teller's "explanation" of the trick is deliberately defective in that he omits to explain how the rose is cut. So it is not really an explanation at all. He gets copyright on his misleading diagram, because that is reduced to practice. He does not get copyright on the trick because (1) it is not copyrightable matter and (2) he did not actually disclose the trick.

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Straight from the mouth itself.
"You might be wondering if we had to break some magician's code of secrecy to show you that hanky thing. Yeah, we did. And there are probably some magicians, some tuxedo-clad lowlifes, that actually put their cheesy little secrets above patriotism..."http://www.youtube.com/watch?v=vEB50IfgkA4

On the other hand, I remember the flower-shadow trick as Teller's masterpiece.

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Fifty nine comments and no one calls into question the true details of this story. Penn filed years ago on this trick the other magician was selling the secrets not performing.

Most telling was that Penn went above and beyond by asking nicely and even offering to pay this person stealing his work to cease. Before filing with the courts to prevent further damages to Penn's work.

There are times when protecting ones works are needed. Further more Penn should be commended and used as an example as to the proper way to initially respond.

I'm honestly quite disappointed to see that only one side of the story being told on this blog as I expected more.

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You're right that it doesn't always work, but was it even tried in this instance? If so you have a valid point, but if not then this legal maneuver is also doing disservice to the strength of the social network by going around it. If enough magicians use lawyers instead of their peer group to handle these disputes then the whole community may very well collapse with these performers all losing a vital tool and more.

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Fifty nine comments and no one calls into question the true details of this story. Penn filed years ago on this trick the other magician was selling the secrets not performing.

Teller, not Penn.

Most telling was that Penn went above and beyond by asking nicely and even offering to pay this person stealing his work to cease. Before filing with the courts to prevent further damages to Penn's work.

What's "telling" about that?

There are times when protecting ones works are needed. Further more Penn should be commended and used as an example as to the proper way to initially respond.

Why is it proper to sue in this case? I don't see how this is a proper way to respond? It seems like a terrible and unnecessary way to respond.

Uh...

How is this copyright and not a patent? I was under the impression that patents protected the method for doing something. Can you copyright the result of a method and then prevent people from performing different methods to achieve similar results?

Never mind, don't explain, just tear the whole system down and try again.

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Penn has stated many times that the secret isn't important. It's the show. Penn & Teller have patented several of their tricks. You can go view the patent and know exactly how they do them. People don't do this because it ruins the mystery.

Dramatic Performance

Teller claims this is a dramatic performance. So how is this any different than someone just performing 'Death of a Salesman'. Shouldn't the Dutch fella have licensed the work and not be able to sell copies on his own?